Bloomberg Law
Jan. 25, 2022, 10:09 PM

Students With Disabilities Get Mixed Results on Mask Mandates

Mary Anne Pazanowski
Mary Anne Pazanowski
Legal Reporter

Parents of students with disabilities in Iowa and South Carolina received mixed results Tuesday in cases alleging state provisions barring mask mandates in public schools violate their children’s rights under federal disability bias laws.

The cases are examples of litigation throughout the country contesting the validity of state laws, executive orders, and health department initiatives either requiring—or barring schools from requiring—that students, teachers, and staff wear masks while in school buildings to help stop the spread of Covid-19.

The U.S. Court of Appeals for the Eighth Circuit upheld—but narrowed—an injunction blocking state officials from enforcing a law prohibiting universal masking requirements in districts where students with disabilities attend school.

Masks are a reasonable accommodation for students who might otherwise be unable to attend in-person classes due to conditions that make them more vulnerable to Covid-19 infections than other students, the court said in a split opinion.

But the U.S. Court of Appeals for the Fourth Circuit, also in a split opinion, released South Carolina Gov. Henry McMaster (R) and Attorney General Alan Wilson (R) from a suit over a budget provision that prohibits school districts from using state money to support mask mandates.

McMaster wasn’t subject to suit because there was no showing he has authority to enforce the provision, the Fourth Circuit said. The case against Wilson failed because he hasn’t threatened to enforce the law against districts where the disabled students go to school, it said.

The case is still proceeding against other state and local defendants.

Inconsistent Results

Decisions on school mask mandates have been inconsistent. For example, Pennsylvania’s top court struck down a health department universal masking order in December, and a New York court invalidated the state’s school mask mandate Monday.

But a lower Pennsylvania court and a federal court in Tennessee have ordered school districts to enforce mask mandates to protect students with disabilities. And in Texas, both state and federal judges have at least temporarily blocked Gov. Greg Abbott’s (R) ban on mask mandates. The Texas case is on appeal to the U.S. Court of Appeals for the Fifth Circuit.

The Iowa and South Carolina parents made basically the same claims. Their children’s disabilities make them more likely to suffer severe injuries or die from Covid-19, so without some reasonable accommodation they can’t attend school in person.

The students were likely to win on their argument that the law violates their rights under the Rehabilitation Act and the Americans with Disabilities Act, the Eighth Circuit said in an opinion written by Judge Duane Benton and joined by Judge Jane Kelly.

The law has prevented the students’ schools from providing accommodations required by federal law, the court said. The court, however, vacated a portion of the injunction that applied to schools not attended by the students.

It also held the federal laws don’t preempt the Iowa provision, because the latter includes a statement that it doesn’t apply when masks are required by federal law.

Judge Ralph R. Erickson dissented. He argued that the parents’ failure to submit their claims for administrative review under the Individuals with Disabilities Education Act barred the suit.

Standing-Only Decision

The Fourth Circuit didn’t reach the merits, holding only that the parents lacked standing to sue McMaster because they didn’t allege he had any power to enforce the budget proviso beyond his general duty as the state’s governor to execute state laws.

The parents also lacked standing to sue Wilson, the court said in an opinion written by Judge Stephanie D. Thacker and joined by Judge Paul V. Niemeyer. It vacated an injunction against these two defendants and sent the case back to the district court with instructions to dismiss them from the suit.

Wilson has threatened to enforce the proviso against a particular school district, but not against any district where the plaintiffs’ children attend school, the court said. The parents also haven’t alleged their districts eliminated mask mandates based on a threat from Wilson that he will enforce the proviso against them, it said.

At this point, it’s “wholly speculative” that an order blocking Wilson from enforcing the proviso would allow the students’ school districts to impose mask mandates that would allow them to return to in-person classes, the court said.

But the court indicated that the parents’ claims might not survive anyway. The South Carolina Supreme Court has held that the proviso doesn’t necessarily bar school districts from adopting mask mandates—it only prohibits them from using state money when doing so, the court said.

Judge James Andrew Wynn dissented. The court’s interpretation of the proviso is inconsistent with statements made by most South Carolina officials, including McMaster and Wilson, who have said it bans school mask mandates, he said.

And though it’s “theoretically possible” to adopt and enforce mandates without using state money, it’s not likely, “practically speaking,” he said.

Additionally, the “chilling effect” of Wilson’s threat to enforce the proviso against another school district gives the parents standing to sue him, Wynn said.

ACLU of Iowa Foundation, the American Civil Liberties Union, Duff Law Firm PLC, Arnold & Porter Kaye Scholer LLP, Disability Rights Iowa, and Arc of the United States represent the plaintiffs in the Eighth Circuit case.

The Iowa Attorney General’s Office represents the state defendants. Ahlers & Cooney PC and Klass Law Firm LLP represent the school districts.

Wyche PA, American Civil Liberties Union, ACLU of South Carolina, Disability Rights South Carolina, Arnold & Porter Kaye Scholer LLP, South Carolina Appleseed Legal Justice Center represent the plaintiffs in the Fourth Circuit case.

The South Carolina governor’s and attorney general’s offices represent McMaster and Wilson.

The cases are Arc of Iowa v. Reynolds, 8th Cir., No. 21-3268, 1/25/22 and Disability Rights S.C. v. McMaster, 4th Cir., No. 21-2070, 1/25/22.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at